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IRWrN M. ZALKIN, ESQ. 689951)DEVIN M. STOREY, ESQ. $23421t)LISA J. GARY, ESQ. $272936)ALEXANDER S. ZALKIN, ESQ. (#280813)The Zalkin Law Firm, P.C.12555 High Bluff Drive, Suite 260San Diego, CA92I30Tel: 858-259-3011Fax: 858-259-3015Email: I¡win@ zalkin.com

dms@zalkin.comlisa@zalkin.comalex@zalkin.com

Attorneys for Plaintiff

Jose Lopez, Individually,

Plaintiff

v

Defendant Doe 1, Linda Vista Church;Defendant Doe 2, SupervisoryOrganization; Defendant Doe 3,Perpetrator; and Does 4 through 100,inclusive,

Defendants.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO

))))))))))))))))))))))))

Case No: 37 -2012-00099849-CU-PO-CTL

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFF'S MOTION FORSANCTIONS, INCLUDINGTERMINATING SANCTIONS ANDMONETARY SANCTIONS IN THEAMOUNT OF $37,799.21, AGAINST\ryATCHTOWER BIBLE AND TRACTsocIETY OF NEW YORK, rNC., FORFAILURE TO COMPLY WITH THISCOURT'S ORDERS

Date: IVf.ay 2,2014Time: 8:30 a.m.Dept: 65Judge: Hon. Joan M. Lewis

Trial Date: 6-21-14

..IMAGED FILE''

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FORSANCTIONS,INCLUDING TERMINATING SANCTIONS AND MONETARY SANCTIONS IN THE

AMOUNT OF $37,799.21, AGAINST WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK,INC., FOR FAILURE TO COMpLy WITH THIS COURT'S ORDERS

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TABLE OF CONTENTS

I. INTRODUCTION

II. FACTUAL HISTORY

A. Watchtower's Early Abuses of the Discovery Process....

B Watchtower's Refusal to Comply with a Multitude of CourtOrders Regarding the PMQ Deposition and the Deposition ofGerrit LoschWarrants the Issuance of Terminating Sanctions..

TERMINATING, AND OTHER SANCTIONS, ARE AVAILABLE IF A PARTYENGAGES IN MISUSE OF THE DISCOVERY PROCESS . .. . . . . . ...9

A. Discovery Sanctions Have Been Upheld When a NationalOrganization Failed to Comply V/ith a Court Order to ProduceHistorical Records of Individual Sexual Abuse Complaints in ItsPossession

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B. Watchtower Has Repeatedly Engaged in Willful Abuse of theDiscovery Process Sufficient to Justify the Imposition of TerminatingSanctions.

4. Watchtower Unreasonably Persisted in Seeking the Depositionof Dr. Clark Clipson, Ph.D. Without Substantial Jurisdiction...

.10

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1. Watchtower Has Willfully Disobeyed Several Court Ordersto Provide Discovery. 11

2. 'Watchtower Failed to Submit to an Authorized Method of

Discovery. t2

3. Watchtower Has Persisted Without Substantial Justificationin Several Unmeritorious Objections to Discovery. ........I2

5. 'Watchtower Unsuccessfully Made or Opposed Several Motionsto Compel or Limit Discovery. ......13

Only A Terminating Sanction Against Watchtower Can PossiblyPrevent Plaintiff from Being Prejudiced by Watchtower's WillfulRefusal to Provide Court-Ordered Discovery... ...........I4

D. Monetary Sanctions Should be Imposed on Watchtower

IV. CONCLUSION

IMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR

TERMINATING SANCTIONS AGAINST WATCHTOWER BIBLE AND TRACT SOCIETYOF NEW YORK,INC., FOR FAILURE TO COMPLY WITH THIS COURT'S ORDER

C.

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TABLE OF AUTHORITIES

California Cases

Alliance Bank v. Murray(1984) 161 Cal.App.3d 1

Andrus v. Estrada(1995) 39 Cal.App.4th 1030

Calvert Fire Ins. Co. v. Cropper(1983) 141 Cal.App.3d 901

Doe v. U.S. Swimming, Inc.(201 1) 200 Cal.App.4th 1424..

Do It Urself Moving & Storage Inc. v. Brown, Leifer, Slatkin & Berns(1992) I Cal. App.4th 21 , 36.

.12

15

Doppes v. BenlLey Moîors, Inc.(2009) 174 Cal.App.4"' 967 .......

Gilbert v. Van Sickle(2oII) 196 Cal.App.4'h 1495.....

Roman Catholic Archbishop of Los(2005) 131 Cal.App.4'n 417

Liberty Mutual Fire Ins. Co. v. LcL Adm'rs, Inc.(2008) 163 Cal.App.4th IO93

Angeles v. Superior Court

9, 12

10,11, 12,14

9

14, 15

..r4

..2, 12

.9

R.S. Creative, Inc. v. Creative. Cotton, Ltd.(Iggg) 75 Cal.App.4'h 486.

Cal. Code Civ. ProcCal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal Code Civil Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.Cal. Code Civ. Proc.

$ 340.1, subds. (g), (h).$ 340.1, subds. (hX1).$ 340.1, subds. (i), (q).ç 425.t4.$ 2020.010, subd. (g)....$ 2023.010$ 2023.010(a)....$ 2023.010, subd. (d)....$ 2023.010, subd. (e)....$ 2023.010, subd. (h)....$ 2023.030$2023.030(a).....$2023.030(b).....$ 2023.030(c)....

,).2a-)1

$ 2025.450(h)$ 2030.030.....

llMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR

TERMINATING SANCTIONS AGAINST WATCHTOWER BIBLE AND TRACT SOCIETYOF NEW YORK,INC., FOR FAILURE TO COMPLY WITH THIS COURT'S ORDER

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I. INTRODUCTION

Defendant Watchtower Bible and Tract Society of New York, Inc. ("Watchtower") has

taken every opportunity to misuse the discovery process to create unnecessary work and cost for

Plaintiff, place unnecessary burden on this Court, and withhold vital information from Plaintiff.

This pattern of discovery abuse reached a crescendo between March 31,2014 and April 3,2014,

when'Watchtower refused to comply with several court orders requiring: 1) the production of

documents relating to'Watchtower's knowledge of the prevalence of childhood sexual abuse

within its organization; and 2) the production of its managing agent Gerrit Losch for deposition.

In failing to comply with this Court's orders, Watchtower has withheld evidence

necessary to Plaintiff's claims of negligence, ratification and punitive damages. In short,

Watchtower's actions fundamentally impede Plaintiff's ability to prove nearly every aspect of his

claim. Despite multiple warnings by this Court that non-compliance with the Court's orders

would result in contempt or sanctions, 'Watchtower did not waver in its disrespect for this Court's

authority. In light of the significance of the materials withheld by the Defendant, and

Watchtower's continued recalcitrance, this Court is justified in determining that a terminating

sanction is necessary to respond to Watchtower's persistent pattern of discovery abuse. Plaintiff

therefore respectfully requests that this Court issue an order imposing sanctions, including

monetary and terminating sanctions, striking Watchtower's answer and entering a default.

il. FACTUAL HISTORY

A. Watchtower's Early Abuses of the Discovery Process

This action results from the sexual abuse of Plaintiff Jose Lopez by Gonzalo Campos.

The molestation arose from Plaintiff and Campos' mutual association with Defendants Linda

Vista Spanish Congregation of Jehovah's Witnesses ("Linda Vista") and Watchtower.

(Plaintiff's Exhibit ("PE") 1, Plaintiff's Complaint for Damages.) Prior to the commencement of

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MEMORANDT'M OF POINTS AND AUTHORITIES IN SUPPORT OF PLÄ.INTIFF'S MOTION FOR SANCTIONS, INCLT]DING

TERMINATING SANCTIONS AND MONETÀRY SANCTIONS IN TIIE AMOTJNT OF $37,799.21, Ä.GAINST WATCHTOWER

BIBLE AND TRACT SOCIETY OF NEW YORK, INC.

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Plaintiff's claim, Watchtower had been named as a defendant in two prior lawsuits involving the

molestation of six children by Gonzalo Campos. (Declaration of Devin M. Storey, at j[ 7.)

During earlier cases, the discoverability of documents in 'Watchtower's possession was

litigated. Watchtower claimed that eleven documents pertaining to Campos' molestation of

children were not relevant for purposes of discovery, were privileged by the clergy-penitent

privilege, and were not discoverable under the First Amendment. These objections were

meritless under Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131

Cal.App.4th 4I7 . The trial court overruled Watchtower's objections as to ten of the eleven

documents, and ordered those documents in Watchtower's possession to be produced.

In this action, Watchtower asserted the same privileges over the same eleven documents.

(Storey Dec. at t[ 8.) Despite contrary appellate authority and a trial court order requiring the

production of these exact documents, Watchtower persisted in the same invalid objections;

thereby requiring Plaintiff to file an unnecessary motion to compel. Watchtower's objections

were overruled, and those ten documents were ordered produced again. (PE 5, Order re

Plaintiff s Motion to Compel.)

Since Plaintiff was older than 26 at the time of the filing of his complaint, he was

required to file certificates of merit. Cal. Code Civ. Proc. $ 340.1, subds. (g), (h). One

certificate of merit must be executed by a licensed mental health practitioner, and in this case,

was executed by Dr. Clark Clipson, Ph.D. See Cal. Code Civ. Proc. $ 340.L, subd. (hX1).

Although certificates of merit may not be reviewed by opposing counsel (Cal. Code Civ. Proc. $

340.I, subds. (i), (q)); and were, in this case, sealed by court order (PE 4, Order Sealing

Certificates of Merit), Watchtower subpoenaed the records of Dr. Clark Clipson, Ph.D.1

As a prerequisite for conducting discovery on the issue of punitive damages, Plaintiffrequired to make a motion to amend his complaint to allege punitive damages by Code of Civilç 425.14. Although another court had granted an almost identical motion against Watchtower in

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MEMORANDTIM OF POINTS Á.ND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SANCTIONS, INCLUDINGTERMINATING SANCTIONS AND MONETÄRY SANCTIONS IN TIIE AMOUNT OT $37,799.2I, AGAINST WÄTCHTOWER

BIBLE AND TRACT SOCIETY OF NE\ry YORK, INC.

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Plaintiff informed Watchtower that the materials were not discoverable and provided

authority to that effect. (PE 6, Letter to Rocky Copley Dated March 25,2013.) 'Watchtower

refused to withdraw the subpoena. (Storey Dec. at 1l I2.) Plaintiff filed a successful motion to

quash. (P87, Order Granting Motion to Quash.) 'Watchtower's persistence in these legally

unsupportable discovery measures placed undue burden on Plaintiff and this Court.

B. Watchtower's Refusal to Comply with a Multitude of Court OrdersRegarding the PMQ Deposition and the Deposition of Gerrit Loschthe Issuance of Terminating Sanctions

On August 22,2013, Plaintiff informed Defendants that he intended to take the

depositions of 'Watchtower's PMQ ("PMQ"), Gerrit Losch and several other witnesses. (Storey

Dec. at I17 .) On September 16,2013, James McCabe, Esq., represented to Plaintiff that he was

authorized to accept service of the notices of deposition of Mr. Losch and the PMQ. (Storey

Dec. at j[33; PE 18, Email from McCabe to Storey Dated September 16,2013.)

On September 20,2013, 'Watchtower was served with the notice of deposition of the

PMQ, with production of documents ("PMQ Notice"). (PE 19, PMQ Deposition Notice.) The

deposition was scheduled to occur on October 24,2013. (PE 19.) On October 9,2013,

'Watchtower served objections to the PMQ Notice. (Storey Dec. at !t35.)

In light of Watchtower's objections to the PMQ Notice, and subsequent conversations

between counsel, it was clear that Watchtower would not comply with production demands

appended to the PMQ Notice. Thus, on October 2I,2013, the parties agreed that the deposition

of the PMQ should not move forward piecemeal, but should instead be continued to a date after

Plaintiff's motion to compel could be heard. (Storey Dec. at 51 38.)

factually related case involving sexual molestation by Campos, Watchtower refused to stipulate togranting of the motion. (Storey Dec. at 91 14.) After Plaintiff was forced to go through the effortpreparing the motion, and the cost of filing the motion, Watchtower filed a notice of non-opposition.8, Watchtower Notice of Non-Opposition). The motion was granted. (PE 9, Order Dated March 1

20t3.) .

MEMORÄNDT]M OF POINTS AND A,UTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SÀNCTIONS, INCLUDINGTERMINATING SANCTIONS AND MONETA.RY SANCTIONS IN THE AMOUNT OF $37,799.2I, AGAINST WÁ.TCHTOWER

BIBLE AND TRACT SOCIETY OF NEW YORK, rNC.

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On October 25,2013, this Court heard Defendants' joint motion for summary judgment

on the statute of limitations. After denying the motion, the parties agreed, and this Court

ordered, that a discovery referee be appointed to resolve these issues. (PE 2I, Minute Order

Dated October 25, 2013.)

On November J ,2013, Plaintiff served a notice of taking of the deposition of Gerrit

Losch as agreed in the communication on September 16,2013. (P822, Notice of Taking the

Deposition of Gerrit Losch.) The deposition was scheduled to occur on December 9,2013 in

Patterson, New York. (P822.)

On November 20,2013, the parties had a conference call with Judge Vincent Di Figlia

(Ret.) the appointed discovery referee. (Storey Dec. at tl 43.) During that hearing it was

determined that the motions concerning the deposition of Mr. Losch and the PMQ would be

heard on Decemb er 13 , 2OI4 - four days after the deposition of Mr. Losch was scheduled to

occur. The parties agreed the deposition would not take place on that date, but instead would be

continued to a later date to be decided after Judge Di Figilia issued his recommendation. (Storey

Dec. at 1143.)

On December 13, 2013, Judge Di Figlia heard Plaintiff s motions. (P824, Transcript of

the December 13,2013hearing.) With respect to the deposition of Mr. Losch,'Watchtower

withdrew its motion for protective order; instead claiming the deposition had not been properly

noticed. (PE 23, Watchtower Opening Brief re Losch Depo. at p. 1.) Watchtower represented

that "Mr. Losch will exercise his right not to appear for deposition on December 9,2013 because

the deposition notice is void on its face." (P823 at p. 1.)

On December 20,2013, Judge Di Figlia issued his recommendation that the depositions

of Mr. Losch and the PMQ should move forward as noticed. (P8 25, Referee's

Recommendation.) The referee determined that Mr. Losch was a managing agent of

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MEMORANDUM OF POINTS Ä,ND ÄUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SANCTIONS, INCLUDING

TERMINATING SANCTIONS AND MONETARY SANCTIONS IN THE A.MOUNT OF fi37,799,2|, AGAINST WÄTCHTO\ryER

BIBLE AND TRACT SOCIETY OF NEW YORK, INC.

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Watchtower, and rejected Watchtower's claim that the deposition notices had not been

appropriately served. (PE 25, Referee' s Recommendation.)

On January 2,2014, this Court reviewed the referee's recommendation. After reading the

recommendation, and hearing and considering Watchtower's objections, this Court issued an

order adopting the recommendations that both depositions should move forward as noticed. (PE

2J ,ll{inute Order Dated January 2,2014.) This Court adopted the finding of the referee that Mr.

Losch was a managing agent of Watchtower, and rejected Watchtower's claim that Mr. Losch

had not been appropriately served with the deposition notice. This Court ordered that both

depositions must take place within 90 days of January 2,2014.

On January 15,2014, Plaintiff proposed that the depositions of the PMQ and Gerit

Losch take place in New York the week of March 24,2014. (P829, Letter Dated January 15,

2014.) Plaintiff also requested that when Watchtower makes the production of documents, un-

redacted versions of specific previously-produced documents that had been given to Plaintiff

with redactions should be included . (PE 29 , Letter Dated January, 15 , 2014.)

Plaintiff received no response to this proposal, so on January 22,2014 kwin Zalkin sent a

follow up email suggesting the same dates. (PE 30, Email Dated January 22,2014.) Later that

day, Plaintiff was informed that Watchtower would not provide dates for depositions, but would

instead file a petition for writ of mandate, and request that this Court stay its previous order. (PE

31, l-ntter Dated January 22, 2014.)

At an ex parte hearing on January 30,2014, Genit Losch "specially appeared" to request

that his personal counsel be admitted pro hac vice into the matter, ostensibly for the purpose of

challenging this Court's order requiring the deposition of Gerrit Losch. (Storey Dec. at tl 60.) In

regard to the request, this Court stated: "I'm not sure that you're entitled to bring a motion to

quash based on the fact that the discovery cutoff date has come and gone, so I'm concerned

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MEMORANDUM OF POINTS AND AUTHORITIES IN SI]PPORT OF PLAINTIFF'S MOTION FOR SÄNCTIONS, INCLT]DING

TERMINATING SANCTIONS AND MONETARY SÀNCTIONS IN THE AMOUNT Oß $37,799.2I,AGAINST WATCHTOWER

BIBLE ÄND TRACT SOCIETY OF NEW YORK, INC.

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about that." (P832, Transcript of Hearing Dated January 30,2014 at p. 6:1-4.) This Court

asked Mr. Losch's counsel "[w]here's your legal authority that says I should give you a date for

a motion to quash?" (P832 atp.6:15-16.)

Counsel was unable to cite any authority, but assured the Court that its concerns would

considered and appropriate authority provided. (PE 32 atp.6:19-24.) This Court directed Mr.

Losch's counsel: "Mr. Ridley [Mr. Losch's out of state counsel] will have the opportunity to

come in if a motion to quash would be appropriate. He could come in any time after today and

talk to the court about it on an ex parte basis on whether or not I should set it." (PE 32 pp.

10:25- 1 1: 1.)

On February 3, Plaintiffs counsel wrote to Watchtower reiterating his suggestion that the

depositions occur during the week of March 24,2014. (PE 33, Letter Dated February 3,2014.)

The following day, Plaintifls counsel wrote to Mr. Losch's attorneys asking for a date for the

deposition. (PE 34, Letter Dated February 4,2014.) On February 5,2014, counsel for Mr.

Losch responded that Mr. Losch's deposition had not been properly noticed and that there is no

order requiring it, so no date would be provided. (PE 35, Letter Dated February 5,2014.)

On February 6,2014, the Court heard Watchtower's ex parte request to stay the January

2,2014 order while 'Watchtower petitioned for a writ of mandate. The Court declined to issue

the stay, and explicitly ordered "Attorney Copley to inform counsel for Mr. Losch, that there is a

couft order re taking Mr. Losch's deposition and the order should be followed." (PE 36, Minute

Order of February 6,2014.) The Court informed Watchtower that non-compliance with the

order requiring the deposition of Mr. Losch could result in contempt. (PE 37, Transcript of

Hearing Dated February 6,2014, atp. 10:9-14.)

On February 6,20L4, Mr. Losch ignored the Court's directive to appear ex parte prior to

filing a motion to quash, and instead unilaterally filed the motion. (Storey Dec. at ïÍ12.) The

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TERMINATING SANCTIONS AND MONETARY SANCTIONS IN THE AMOUNT OF $37,799.2I, AG,A.INST WÄTCHTOWER

BIBLE AND TRACT SOCIETY OF NEW YORK, INC.

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motion advanced the same arguments previously rejected by the referee and this Court via the

January 2,2014 order, that Mr. Losch is not a managing agent of Watchtower, and that the

deposition notice was not properly served. (Storey Dec. at 1,12.)

On March 5, this Court vacated the hearing date on Mr. Losch's motion to quash and

established firm dates for the depositions of the PMQ and Mr. Losch. (PE 38, March 5,2014

Minute Order.) This Court again admonished Watchtower that refusal to comply with the

January 2,2014 orders could result in contempt or sanctions. (PE 39, Transcript of March 5,

20 I 4 Hearing at pp. 10:22- | I :7 ; 25 :23 -26: 5 ; 27 :2- 10.)

On March 12,2014, 'Watchtower notified Plaintiff that despite this Court's several orders,

'Watchtower would not produce documents relating to allegations of sexual abuse at the PMQ

deposition. (PE 41, Letter Dated March 12,2014.) On March 13, Mr. Losch's Counsel

informed Plaintiff that Mr. Losch would not appear to be deposed. (PE 42,Letter Dated March

13,2014.) In fact, Mr. Losch's counsel stated that in the event this Court's ruling is not

overruled, then "following the exhaustion of [Mr. Losch's] appellate rights, we will notify

you z/Mr. Losch will voluntarily appear for his deposition." (PE 42 (italic emphasis added).)

On March 13,2014, Plaintiffs counsel informed 'Watchtower that Plaintiff intended to

move forward with the depositions in New York as ordered. (PE 43, Letter From Zalktn Dated

March 13,2014.) That day, Plaintiffs counsel also wrote to Mr. Losch's attorneys explaining the

legal insufficiency of his position that the deposition notice was not properly served, and

supplying the applicable code sections regarding the taking of the deposition of an out of state

witness who is a managing agent of a party. (PE 44,Iætter From Storey Dated March 13,2014.)

On March 20,2014, Watchtower filed a Petition for Writ of Mandate, and Request for

Immediate Stay. (Storey Dec. at q[ 84.) On March 24, Gerrit Losch filed a Petition for Writ of

Mandate and Request for Immediate Stay. (Storey Dec. at jl 84.) On March 2J,2oI4,both

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TERMINATING SANCTIONS A.ND MONETARY SANCTIONS IN THE AMOUNT OF $37,799.2I, AGAINST WATCHTOWER

BIBLE AND TRACT SOCIETY OF NEW YORK, INC.

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Petitions and Requests for Immediate Stay were suÍrmarily denied. (PE 45, Order in Case

Number D065608; PE 46, Order in Case Number D065541.)

On March 2J,2014, Vy'atchtower refused Plaintiff's request to produce un-redacted

copies of specific documents, noting that Plaintiff did not bring a motion to compel when the

documents were originally produced. (PE 41 ,Letter from Copley Dated March 27 ,2014.) kwin

Zalkin responded via email, reminding Mr. Copley that the requested documents were responsive

to requests in the PMQ Notice, and were due to be produced on March 3I,2014. (PE 48, Email

fromZalkin Dated March 21,2014.)

On March 31,2014, the PMQ Richard Ashe appeared for his deposition, and on April 1,

2014both Mr. Ashe and Mario Moreno, Esq., appeared and testified in their capacities as the

PMQ. Neither Mr. Ashe, nor Mr. Moreno produced documents responsive to Plaintiff s request

for documents relating to sexual abuse incidents known to'Watchtower. (Storey Dec. at 1[91.)

Mr. Ashe testified that the historical records regarding child abuse requested by Plaintiff

and ordered produced have been scanned into a computer system, and that the text of those

scanned documents is searchable. (Storey Dec. at 1,92.) Mr. Ashe testified that Watchtower had

thought about the issue of how to compile those documents, but had not created a team to search

for them. (Storey Dec. at Tt92.) Mr. Ashe could not say definitively that zero documents had

been compiled, but it was clear that no serious effort has been made to comply with this Court's

January 2,2014 order. (Storey Dec. at I92.) Nor did Watchtower produce un-redacted copies

of materials previously produced in severely redacted form.2 (Storey Dec. at 91 93.)

On April I,2OI4, Gerrit Losch filed a Petition for Review and Request for Emergency

Stay with the Supreme Court of California. (Storey Dec. at 9t94.) Notably, Mr. Losch chose to

do this at a time when he knew that Plaintiff's lawyers were in Brooklyn conducting the

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TERMINATING SÀNCTIONS AND MONETARY SANCTIONS IN THE AMOUNT OF $37,7II.2I,AGAINST WÄ.TCHTOWER

BIBLE AND TRACT SOCMTY OF NE\ry YORK, INC.

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deposition of the PMQ. By the close of business on April I,2014, the Supreme Court had not

issued the stay requested by Mr. Losch. (Storey Dec. at 1,94.)

On April 2,2014, Plaintiff s Counsel appeared at the designated time and place for the

deposition of Mr. Losch. (Storey Dec. at 9t 95.) Mr. Losch did not appear for his court-ordered

deposition. (Storey Dec. at 91 95.) Later that day, the Supreme Court of California denied Mr.

Losch's Petition for Review. (Storey Dec. at 1195.)

ilI. TERMINATING, AND OTHER SANCTIONS, ARE AVAILABLE IF APARTY ENGAGES IN MISUSE OF THE DISCOVERY PROCESS

The trial court has complete discretion to award monetary, issue, evidence or terminating

sanctions against a pafiy engaging in misuse of the discovery process. Cal. Code Civ. Proc. $

2030.030. "The power to impose discovery sanctions is a broad discretion subject to reversal

only for arbitrary, capricious, or whimsical action." Do It Urself Moving & Storage Inc. v.

Brown, Leifer, Slatkin & Berns (1992) 7 CaI. App.4th 2l ,36. "Only two facts are absolutely

prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the

failure mustbe wilful .. ." Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d90l,904.

When a party has engaged in a persistent pattern of abuse, the whole of that party's

conduct may be considered in determining what type of sanction is appropriate. See Andrus v.

Estrada (1995) 39 Cal.App.4th 1030, 1043 ("where prior conduct has not been punished, it can

contribute to a later award of sanctions based upon a more extensive course of conduct"); see

also Liberty Mutual Fire Ins. Co. v. LcL Adm'rs, Inc. (2008) 163 Cal.App.4th 1093, 1106. Thus,

'Watchtower's entire pattern of discovery abuse and evasiveness should be considered in

determining whether to impose a terminating sanction.

' lvhen Mr. Ashe was questioned regarding material in the redacted portions of documents on letter (PE 48)he refused to answer. (Storey Dec. at j[ 93.)

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MEMORANDUM OF POINTS AND Ä.UTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SÀNCTIONS, INCLT]DING

TERMINATING SÄNCTIONS AND MONETARY SANCTIONS IN THE AMOUNT OF $37,799.2I, AGAINST WÄTCHTOWER

BIBLE AND TRACT SOCIETY OF NEW YORK, INC.

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Discovery Sanctions Have Been Upheld When a National OrganizationFailed to Comply With a Court Order to Produce Historical Records ofIndividual Sexual Abuse Complaints in lts Possession

In Doe v. U.S. Swimming, Inc.,the plaintiff brought a claim resulting from molestation by

a coach. (2011) 200 Cal.App.4th 1424, 1427 . The plaintiff noticed the PMQ deposition of the

national organization relating to sexual abuse occurring nationwide over the previous ten years

(which period both pre and post-dated the abuse of the plaintiff.) Id. The documents were not

produced and the Plaintiff was forced to bring a motion to compel, asserting:

'the fundamental question of what U.S. Swimming knew about the problem of coachabuse at (and prior to) King's abuse of plaintiff, [was] of the utmost relevance' and thatthe existence of '[s]imilar claims or complaints of coach abuse' that were communicatedto U.S. Swimming were 'central to the issues in this case.' It stated: 'Logically, thehigher the incidence of prior wrongful conduct [by coaches], the more care that should bedevoted to the problem' by U.S. Swimming.

Id. at 1428. The motion to compel was granted and U.S. Swimming was required to produce the

requested documents and allow the testimony of the PMQ. Id. The defendant produced I,864

documents responsive to the request, but the documents were in no discernible order and were

heavily redacted. Id. Following this production the trial court granted another motion to compel

filed by the plaintiff demanding the documents be produced in a less redacted form and in a more

orderly manner. Id. at 143I-1432. The court imposed monetary sanctions on U.S. Swimming.

Id. at 1432. The court of appeal affirmed the imposition of sanctions. Id. at 1439.

This case is factually similar to Doe v. U.S. Swimming, Inc. Whtle both cases involve

sexual molestation of a minor, and a PMQ request for documents showing the historical

incidence of sexual abuse within the defendant

egregious than that at issue in Doe, and the imp

effective. In Doe, the defendant partially compli

Here, Watchtower refused to produce document

organization; and also refused to produce Mr. Losch for deposition, as repeatedly ordered.

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MEMORÄ.NDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SÄNCTIONS, INCLT]DING

TERMINATING SANCTIONS AND MONETARY SANCTIONS IN THE AMOUNT OI 537,799,2I, AGAINST WATCHTOWER

BIBLE AND TRACT SOCIETY OF NEW YORK, rNC.

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Moreover, as discussed herein, Watchtower engaged in a far broader pattern of improper conduct

than the defendant in Doe. Watchtower's repeated discovery abuses and disrespect for court

orders can only be appropriately curtailed through issuance of a terminating sanction.

B. Watchtower Has Repeatedly Engaged in Willful Abuse of the DiscoveryProcess Sufficient to Justify the Imposition of Terminating Sanctions

The Code of Civil Procedure defines the actions that are an abuse of the discovery

process. As relevant here, Code of Civil Procedure $ 2023.0I0 provides:

Misuses of the discovery process include, but are not limited to, the following: . . .tïl . . .

(a) Persisting, over objection and without substantial justification, in an attempt to obtaininformation or materials that are outside the scope of permissible discovery. . . .ff[] . . . (d)Failing to respond or to submit to an authorized method of discovery. . . .till . . . (e)Making, without substantial justification, an unmeritorious objection to discovery. . . .tqll...(g)Disobeyingacourtordertoprovidediscovery....tqtl ...(h)Makingoropposing,unsuccessfully and without substantial justification, a motion to compel or to limitdiscovery.

1. Watchtower Has Willfully Disobeyed Several Court Orders toProvide Discovery

The failure to comply with a court order warrants the imposition of sanctions. Cal. Code

Civ. Proc. $$ 2020.010, subd. (g);2023.030;2025.450(h). On January 2,2014, this Court

adopted the referee's recommendation that Watchtower produce all of the requested documents

relating to sexual abuse within the organization by Aprll2,2014. On February 6, the Court

effectively reiterated its timeframe for the production of the documents by rejecting Defendant's

request for a stay of that order. On March 5,2014, after Watchtower refused to cooperate in

scheduling the court-ordered depositions, this Court ordered specific dates for the depositions to

occur. Watchtower did not produce the requested documents.

This Court has also issued a number of orders relating to the deposition of Mr. Losch.

On January 2,2014, this Court ordered the deposition must occur by April 2,2014. On February

6,2014, this Court refused to stay that order, and reaffirmed that there is a standing order for the

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MEMORANDT'M OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SANCTIONS, INCLUDING

TERMINATING SANCTIONS AND MONETARY SANCTIONS IN TTIE ÀMOUNT OF 637,799,2I, ÄGAINST W^A.TCHTO\ryER

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deposition, which should be obeyed. And, on March 5,2014, this Court ordered the deposition

of Mr. Losch to occur on particular dates. Mr. Losch did not appear.3

By steadfastly refusing to obey this Court's discovery orders, Watchtower willfully

violated each of the orders discussed above. Watchtower should be sanctioned.

2. Watchtower Failed to Submit to an Authorized Method of Discovery

The failure to comply with an authorized method of discovery is a misuse of the

discovery process. Cal. Code Civ. Proc. $ 2023.010, subd. (d). Watchtower's refusal to produce

Mr. Losch, and the PMQ's failure to provide required testimony, as well as Mr. Losch's failure

to appear for his deposition are willful refusals to submit to discovery. See Alliance Bank v.

Murray (1984) 161 Cal.App.3d 1, 3 (affirming default judgment after striking the defendant's

answer for twice willfully failing to appear at a properly noticed deposition.)

The PMQ's refusal to produce documents is also a failure to submit to a proper discovery

request. See Doe v. U.S. Swimming, Inc.,20O Cal.App.4that 1427; Calvert Fire Ins.,l4I

Cal.App.3d at904 (upholding terminating sanction when, despite the passage of approximately

ten months and filing of two motions to compel, party refused to comply with interrogatories and

requests for production of documents.)

3. Watchtower Has Persisted Without Substantial Justification inSeveral Unmeritorious Objections to Discovery

A party's persistence in meritless objections to discovery is a misuse of the discovery

process. Cal. Code Civ. Proc. $$ 2023.010, subd. (e);2023.030. Watchtower has persisted in

asserting objections to Plaintiff's requests for production of documents based on relevance, the

clergy-penitent privilege and the First Amendment. The First Amendment and clergy-penitent

privilege assertions were clearly asserted in contravention of the holding in Roman Catholic

3 Additionally, on January 30,2014, this Court ordered that if Mr. Losch intended to hle a motionchallenging this Court's January 2,2014 order, his counsel must f,rrst appear ex parte with authority demonstratingthat such a motion is appropriate. Mr. Losch refused to comply with this order.

12

MEMORANDUM OF POINTS ÄND ,ÀUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR SÄNCTTONS, TNCLUDING

TERMINATING SANCTIONS AND MONETARY SÄNCTIONS IN THE AMOUNT OF $37,799,2I, AGÄ.INST WATCHTOWER

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Archbishop ofLos Angeles v. Superior Court, and each ofthese objections had been asserted and

ovemrled in this and prior litigation.

Watchtower and its managing agent have also repeatedly claimed that the notice seeking

the deposition of Mr. Losch was not properly served. This position was taken by Watchtower,

despite an unambiguous representation that Mr. McCabe was authorizedto accept service of the

notice of taking the deposition of Mr. Losch. Moreover, the cases and statutes relied upon by

Watchtower and Mr. Losch, clearly have no application to a deposition noticed to occur in

another state, and have been rejected by the discovery referee and this Court. Nonetheless,

Defendant and its managing agent have continually raised this argument.

4. Watchtower Unreasonably Persisted in Seeking the Deposition of Dr.Clark Clipson, Ph.D. Without Substantial JustifÏcation

A party's unreasonable persistence in seeking unjustified discovery is a proper basis for

imposing a discovery sanction. Cal. Code Civ. Proc. $$ 2023.010(a);2023.030. Watchtower

unreasonably subpoenaed documents in the possession of Dr. Clipson, whose sole role in this

case was to provide the confidential certificate of merit required by Code of Civil Procedure $

340.I, subd. (hX1). Despite Plaintiffls detailed explanation as to the non-discoverability of those

materials, Watchtower refused to withdraw the subpoena and in bad faith opposed Plaintiff's

ensuing motion to quash.

5. Watchtower Unsuccessfully Made or Opposed Several Motions toCompel or Limit Discovery

A party that unsuccessfully, and without substantial justification makes or opposes a

discovery motion has misused the discovery process. Cal. Code Civ. Proc. $ 2023.010, subd.

(h). Watchtower unsuccessfully opposed two motions to compel further production of

documents; Plaintiff's motion to quash Watchtower's subpoena duces tecum directed at Dr.

Clipson; and Plaintiff's motion to compel the depositions of the PMQ and Mr. Losch. Even after

Plaintiff's first and second motions to compel further production of documents were granted,

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TERMINÄ.TING SÄNCTIONS ÄND MONETÄRY SANCTIONS IN THE AMOUNT OF $37,799.21, AGAINST WATCHTOWER

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Watchtower persisted in unsuccessfully raising the same objections and assertions of privilege in

the discovery hearing regarding the PMQ deposition before Judge Di Figlia. Watchtower's

managing agent unsuccessfully and with no justification filed a motion to quash this Court's

order requiring the taking of the deposition of Gerrit Losch. These repeated discovery abuses

were willful and subject'Watchtower to sanctions.

C. Only A Terminating Sanction Against Watchtower Can Possibly PreventPlaintiff from Being Prejudiced by Watchtower's Willful Refusal to ProvideCourt-Ordered Discovery

In determining what sanction to impose, the trial court should take into account the

conduct being sanctioned, and the effect on the party requesting the discovery, and should

"attempt[ ] to tailor the sanction to the harm caused by the withheld discovery." Gilbert v. Van

Sickte (20II) 196 Cal.App.4th 1495,1516. "Where a violation is willful, preceded by a history

of abuse, and the evidence shows that less severe sanctions would not produce compliance with

the discovery rules, the trial court is justified in imposing the ultimate sanction." Doppes v.

Bentley Motors, Inc. (2009) 174 Cal.App.4th 967,992.

A terminating sanction is necessary. The information withheld by Watchtower, including

evidence of other instances of sexual abuse within the organization, is vital to Plaintiff's claims.

As succinctly stated by the plaintiff in Doe v. U.S. Swimming "fl]ogically, the higher the

incidence of prior wrongful conduct [by coaches], the more care that should be devoted to the

problem' by U.S. Swimming." 200 Cal.App.4th at 1428. Watchtower's refusal to provide this

information fundamentally impairs Plaintiff's ability to prove his negligence based causes of

action, as well as his ratification claim, and his claim for punitive damages.

Lesser sanctions cannot effectively remedy Watchtower's refusal to provide the

documents. 'Watchtower has been threatened with sanctions and contempt, and still has not

complied with this Court's orders. Monetary sanctions (CCP $ 2023.030(a)) alone are wholly

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insufficient to rectify the damage, because Plaintiff would still be without vital evidence;

evidence sanctions (CCP $ 2023.030(c)) preventing admission of the harmful withheld materials

would benefit Watchtower; issue sanctions (CCP $ 2023.030(b)) - even sanctions establishing

liability and punitive damages - would prejudice Plaintiff because the jury making the award

would not see damaging information. Since Watchtower's misuse of discovery would

detrimentally affect Plaintiff's ability to prove each of his causes of action, and his claim for

punitive damages, no half measures can possibly suffice. In imposing discovery sanctions, the

punishment must fit the crime. Doppes, I74 CaI.App.4th at992. Here, Watchtower's sweeping

misuse of the discovery process and refusal to provide necessary information warrants a

terminating sanction.

D. Monetary Sanctions Should be Imposed on Watchtower

'Watchtower's refusal to produce documents and testimony resulted in economic cost to

Plaintiff. 'Watchtower's actions also resulted in the expenditure of time by Plaintiff s lawyers.

A court may simultaneously impose both monetary and terminating sanctions on a non-

compliant party. S¿¿ R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4'h 486,498,

For these reasons, Watchtower should additionally be assessed a monetary sanction in the

amount of $37 ,199.2I. (See Storey Dec. at 1[[98-108; Declaration of Irwin M. Zalkin, at[lï16-I2.

IV. CONCLUSION

For the foregoing reasons, this Court should grant Plaintiff's motion for sanctions against

Watchtower, order a monetary sanction, strike'Watchtower's answer and enter a default

j udgment against Watchtower.

LAW FIRM, P.C.

Dated: Aprll8,2014Devin M. SAttorney for

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MEMORÁ.NDT]M OF POINTS AND AUTHORITIES IN STJPPORT OF PLAINTIFF'S MOTION FOR SANCTIONS, INCLUDING

TERMINATING SANCTIONS AND MONETARY SÄNCTIONS IN TTIE AMOT]NT OF $37,799,21, AGÄINST WÂ.TCHTOWER

BIBLE A.ND TRACT SOCIETY OF NEW YORK, INC.